E-2007-0846 Exemption No. 10143

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

INSITU, INC. Regulatory Docket No. FAA-2007-28589

for an exemption from §§ 103.1, 103.13, and 103.21 of Title 14, Code of Federal Regulations

DENIAL OF EXEMPTION

By letter dated June 16, 2007, Mr. Rob Hughes, Insitu, Inc. (Insitu), 118 East Columbia River Way, Bingen, Washington, 98605, petitioned the Federal Aviation Administration (FAA) on behalf of Insitu for an exemption from §§ 103.1, 103.13, and 103.21 of Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would allow Insitu to operate an unmanned aircraft system as an ultralight; operate the unmanned aircraft with no person onboard; operate the unmanned aircraft system for commercial purposes; and to be exempt from a majority of part 91.

The petitioner requests relief from the following regulations:

Section 103.1 states that for the purposes of this part, an ultralight vehicle is a vehicle

that:

(a) Is used or intended to be used for manned operation in the air by a single occupant; (b) Is used or intended to be used for recreation or sport purposes only; (c) Does not have any U.S. or foreign airworthiness certificate; and (d) If unpowered, weighs less than 155 pounds; or (e) If powered:

(1) Weighs less than 254 pounds empty weight, excluding floats and safety devices which are intended for deployment in a potentially catastrophic situation; (2) Has a fuel capacity not exceeding 5 U.S. gallons; (3) Is not capable of more than 55 knots calibrated airspeed at full power in2

level flight; and (4) Has a power-off stall speed which does not exceed 24 knots calibrated airspeed.

Section 103.13 states that:

(a) Each person operating an ultralight vehicle shall maintain vigilance so as to see and avoid aircraft and shall yield the right-of-way to all aircraft. (b) No person may operate an ultralight vehicle in a manner that creates a collision hazard with respect to any aircraft. (c) Powered ultralights shall yield the right-of-way to unpowered ultralights.

Section 103.21states that:

No person may operate an ultralight vehicle except by visual reference with

the surface.

The petitioner supports its request with the following information:

The petitioner states that it has carefully reviewed the Federal Aviation Regulations and finds that regulatory relief (as opposed to policy relief) under existing part 103 is adequate. The petitioner believes that part 103 also provides the FAA the regulatory basis to permit ultralight unmanned vehicle operations, for commercial purposes, within Class G Airspace, over sparsely populated terrain, and maritime areas. Part 103 establishes rules governing the operation of ultralight vehicles in the United States; and defines overall size, weight, and operating characteristics. Of particular note, physical and operational characteristics closely align with those of the petitioner’s ultralight unmanned vehicle, the Insight/ScanEagle. This congruence enables the petitioner to build upon those detailed safety analyses and other legal requirements, which were completed by the FAA as a condition of issuance of the final part 103 rule, and provides a regulatory framework with which to evaluate the petitioner’s rationale for both public benefit and methods to achieve a part 103 level of safety.

The petitioner notes that a detailed review of part 103 reveals only three provisions that require exemptions or waivers under § 103.5 to successfully operate the ultralight Insight/ScanEagle unmanned vehicle (§§ 103.1, 103.13, and 103.21).

Insitu states § 103.1(a) restricts both pow ered and un-powered vehicles to single occupant. The petitioner requests that this provision be waived to permit the operation of the Insight/ScanEagle ultralight vehicle unoccupied – or unmanned.

Insitu states § 103.1(b) limits the ultralight vehicle for recreation and sport purposes only. Background to the promulgation of the original rule published in the Federal Register on September 2, 1982, clarifies both the intent of this requirement and its3

application for the petitioner’s request of waiver. According to Insitu, the FAA clearly states that the requirement for sport or recreation is to establish a burden of acknowledging and accepting an associated unmitigated operational risk that may not be apparent or accepted by the public (i.e., commercial operations). Further, the FAA suggests that the connotation of “sport” means operations are conducted away from concentrations of population and aircraft operations. The petitioner requests that this provision be waived to permit commercial applications with the restriction that the petitioner operates its ultralight vehicles only in Class G airspace, over sparsely populated terrain or water, – well away from any established concentrations of population and aircraft operations.

Section 103.13 recommends that “operators engaged in ultralight operations avoid, if possible, areas where significant operations of aircraft are occurring so as to minimize the risk of midair collisions.” The petitioner requests an exemption to this provision and will provide and adhere to alternative methods to establish and maintain, as a condition of approval of this petition, an equivalent level of safety as required under this part. These alternatives are detailed below under equivalent level of safety. The petitioner states § 103.21 is a unique requirement for a part 103 ultralight vehicle. The petitioner states that it will describe the fully instrumented attributes of its Insight/ScanEagle ultralight unmanned vehicle and its intended concept of launch, recovery, and flight operations from a variety of domains: shore, maritime only, and mixed. Additionally, the ultralight unmanned vehicle operator will operate only under visual flight rules, which enables the ultralight unmanned vehicle to be continuously observable from the ground.

The petitioner states the exclusions or waivers requested to operate under part 103 are relatively modest, brief, and well justified in the operational context of this petition: ultralight unmanned vehicle operations in Class G airspace over sparsely populated land or maritime operating environments. Nevertheless, an ultralight unmanned vehicle operating under provisions of rulemaking, clearly intended for a manned ultralight vehicle is a departure from the traditional FAA rulemaking. The petitioner expresses confidence that the FAA will realize the mutual benefits of this approach – it creates badly needed time for the FAA to build expertise and assemble a rulemakingcommittee; and it facilitates the collection of real safety data that will support followon rulemaking for this class of unmanned vehicles. Given the scope, complexity and diversity of unmanned aircraft systems, the establishment of codified rules may be years away. The petitioner reiterates that this petition for exemption facilitates the collection of operational and safety data information and experience under safe, controlled conditions that will support and serve as a basis for well-grounded future unmanned aircraft rulemaking that is fully compliant. The petitioner states it will offer to work closely with the FAA to develop, monitor, report, and coordinate data and information as a condition of approval of this petition that will support future FAA rulemaking actions for unmanned aircraft.4

A summary of the petition was published in the Federal Register on July 19, 2007 (72 FR 39659). Two comments were received. The commenters were not in support of a grant of exemption.

Experimental Aircraft Association stated that part 103 does not apply to unmanned aerial vehicles and believes the FAA should deny the petition for exemption.

Air Line Pilots Association (ALPA) states that after reviewing Insitu’s petition, it is unclear under what rules Insitu operates its ScanEagle. ALPA does not believe that the requested exemption applies to the petitioning operator’s aircraft. Moreover, ALPA states that UAS entry into National Air Space is still in its infancy and should be given time to mature prior to the FAA considering any exemptions to the existing UAS policy. ALPA is not in favor of granting this exemption.

The FAA's analysis is as follows:

The FAA has considered fully the petitioner’s request and finds that a grant of exemption, would not be appropriate, would not be in the public interest, and would not provide a level of safety equivalent to the current regulations. The relief sought is inappropriate because part 103 does not apply to unmanned aircraft and because it is contrary to FAA policy to grant exemptions to the applicability provisions of its regulations.

While many assertions are made in the petition, no data is presented to the FAA to demonstrate that the relief sought would provide a level of safety equivalent to that provided by part 103. The petitioner states the rule promulgated as part 103 clearly met the FAA safety objectives and bears testimony to the fact that this current rule is virtually unchanged since its inception 25 years ago. Operations under part 103 are safe when ultralight vehicles are operated in accordance with those rules. Though the petitioner proposes to operate exclusively under the provisions and exempted provisions of part 103, the uniqueness of the exemption requested is so dramatic as to nullify any connection to an operation of a manned ultralight.

The petitioner states that in the absence of the relief sought, virtually all commercial UAS applications, flight training, and pre- delivery flight testing within the United States regardless of UAS weight, size, operating characteristics and or capability can not be conducted. Contrary to the statements made in the petition, FAA has a process to authorize UAS operations in existence for small aircraft.

Section 103.13(b) states that no person may operate an ultralight vehicle in a manner that creates a collision hazard with respect to any aircraft. The FAA notes that Insitu did not request an exemption from this section and presented no argument or approach as to how this requirement would be met. With no approved see and avoid capability existing today, any mitigation or argument must clearly show, using data, how5

compliance with a regulation will be met. Anti-collision lights, as a sole mitigator, do not satisfy this requirement.

The petitioner states § 103.21 is a unique requirement for a part 103 ultralight vehicle. The petitioner states that it will describe the fully instrumented attributes of its Insight/ScanEagle ultralight unmanned vehicle and its intended concept of launch, recovery, and flight operations from a variety of domains: shore, maritime only, and mixed. Additionally, the ultralight unmanned vehicle operator will operate only under visual flight rules, which enables the ultralight unmanned vehicle to be continuously observable from the ground. The FAA believes this to be more relative to situational and positional awareness of the onboard pilot more than the ability to be seen by those on the ground.

Finally, the FAA believes the recommended solutions to establishing an equivalent

level of safety have no basis in data. Proposals such as lack of air traffic density, the use of a bird radar, etc., are not meaningful without the applicant submitting extensive data to support the case being made. None has been provided. Furthermore, the FAA finds that Insitu has failed to show how it is unique from the general class of regulated persons so as to justify an exemption. The FAA notes that if it were to determine that relief from the current rule is acceptable, it would take appropriate action to change the rule so all persons may benefit.

The FAA’s Decision:

In consideration of the foregoing, I find that a grant of exemption would not be in the public interest. Therefore, pursuant to the authority contained in 49 U.S.C. §§ 40113 and 44701, delegated to me by the Administrator, the petition of Insitu, Inc. for an exemption from 14 CFR §§ 103.1, 103.13, and 103.21 is hereby denied.

Issued in Washington, DC, on Sep 27 2010.

/s/

Kalene C Yanamura Acting Director, Aircraft Certification

Service